Armed MQ-9 Reaper drones like this one are used by both the U.S. military and the CIA. Photo: USAF

The President Barack Obama administration does not have to disclose the legal basis for its drone targeted killing program of Americans, according to a Wednesday decision a judge likened to “Alice in Wonderland”.

U.S. District Court Judge Colleen McMahon of New York, ruling in lawsuits brought by the American Civil Liberties Union and The New York Times, said she was caught in a “paradoxical situation” (.pdf) of allowing the administration to claim it was legal to kill enemies outside traditional combat zones while keeping the legal rational secret.

The opinion comes months after 26 members of Congress asked Obama, in a letter, to consider the consequences of drone killing and to explain the necessity of the program. The use of drones to shoot missiles from afar at vehicles and buildings that the nation’s intelligence agencies believe are being used by suspected terrorists began under the George W. Bush administration and was widened by the Obama administration to allow the targeting of American citizens. Drone strikes by the Pentagon and the CIA have sparked backlashes from foreign governments and populations, as the strikes often kill civilians, including women and children.

In the end, however, the government’s claim of national security trumped the Freedom of Information Act. According to Judge McMahon:

… this court is constrained by law, and under the law, I can only conclude that the government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.

Despite numerous public comments on the CIA’s drone attacks in far-flung locales such as Yemen from various government officials, including former CIA Director Leon Panetta, President Obama and Attorney General Eric Holder, the government is taking the position in court that it would have to eliminate you with one of its drones if it explained the legal basis of the program.

In 2011, Obama acknowledged particular CIA drone strikes at a Joint Chiefs of Staff ceremony. Within hours of the CIA drone strike that killed U.S. citizens Anwar al-Awlaki and Samir Khan in Yemen, the president publicly lauded the move as “another significant milestone in the broader effort to defeat al-Qaeda and its affiliates” and then acknowledged the U.S. government’s role, stating that “this success is a tribute to our intelligence community.”

The authorities have conceded, however, that a Justice Department Office of Legal Counsel opinion addresses the issue, but maintain that it does not have to be made public. “It is beyond the power of this court to conclude that a document has been improperly classified,” the judge wrote.

Politico’s Josh Gerstein, who first reported the opinion, notes that such a statement by the judge is false, and that in “very rare cases” judges “have done so.”

Meanwhile, survivors of three Americans killed in 2011 by targeted drone attacks in Yemen, including survivors of al-Awlaki, have sued top-ranking members of the United States government, alleging they illegally killed the three, including a 16-year-old boy, in violation of international human rights law and the U.S. Constitution.

The case directly challenges the government’s decision to kill Americans without judicial scrutiny.

The suit (.pdf) is being litigated by the Center for Constitutional Rights and the ACLU. It seeks unspecified damages and maintains the drone attacks have killed thousands, including hundreds of innocent bystanders overseas. (Other estimates of the campaign come to widely different conclusions.)

The suit, the first of its kind, alleges the United States was not engaged in an armed conflict with or within Yemen — prohibiting the use of lethal force unless “at the time it is applied, lethal force is a last resort to protect against a concrete, specific, and imminent threat of death or serious physical injury.”